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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Sunday, September 19, 2010

UConn gadfly has no free speech claim

The Court of Appeals has dismissed a First Amendment claim filed by a high-ranking public employee who spoke out against his public university's policies, holding that his employer's interest in efficient management outweighs the plaintiff's right to speak out on matters of public concern.

The case is Faghri v. University of Connecticut, decided on September 17. Faghri was Dean of the School of Engineering. He became an outspoken critic of many of the university's policies, and the Second Circuit (Leval, Hall and Murtha [D.J.]) give us the laundry list. For example, he publicly objected to the university's plans to establish a regional campus in Dubai, and he opposed plans to close out the university's School of Family Studies and other programs. He also accused the university of mismanaging funds. Six categories of public objections in all. Faghri was a gadfly. The college probably thought he was a pain in the ass. It made him resign his deanship, but he retained his teaching position.

In 1968, the Supreme Court held in Pickering v. Board of Education that public employers can discipline subordinates who speak out on matters of public concern if the speech in some way disrupted workplace or governmental efficiency. We call this Pickering balancing. Faghri falls victim to Pickering balancing. The Court of Appeals rules that "because the deanship of the School of Engineering is an executive, policymaking position, the management of the university was entitled to have such a position occupied by one who voiced support for, or at least did not voice opposition to, the university's policies. It was therefore entitled to remove Faghri from that position for publicly opposing the university policies." In other words, while the man on the street can say these things, and Faghri can even say these things in his capacity as professor without fear of retribution, his managerial position restricts what he can say under Pickering.

This is not the first time the Second Circuit has rejected speech claims by high-ranking public employees in this context, but it's been a while since we saw a case like this. The mid-1990s saw a few such cases, including McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997), and Faghri's case ties this doctrine together in a fairly bright-line way. Managerial employees in the public sector had better get with the program and put a lid on it if they want to avoid discipline. Their free speech rights rest on a very thin reed at this point.